New Judgment: ANS & Anor v ML (AP) (Scotland)  UKSC 30
11 Wednesday Jul 2012
On appeal from:  CSIH 38
The appellant is the mother of a child who is the subject of adoption proceedings. She is opposed to the proposed adoption and has refused to give her consent. The first respondents are the prospective adoptive parents.
The issue in the appeal was whether the Adoption and Children (Scotland) Act 2007, s 31(3)(d) was incompatible with the Convention right set out in ECHR, art 8, with the consequence that it was outside the legislative competence of the Scottish Parliament. s 31(3)(d) is concerned with parental consent to adoption and sets out the grounds on which the parent’s or guardian’s consent to the making of the adoption order may be dispensed with, namely “where […] the welfare of the child otherwise requires the consent to be dispensed with.”
The Supreme Court dismissed the appeal. When the legislation was read and given effect according to ordinary principles it did not result in an incompatibility with the Convention. s 31(3)(d) empowers the court to dispense with the parent’s consent only if it is satisfied that the welfare of the child “requires” it. The word “requires” must mean that it is necessary. The court will not lightly authorise the making of an adoption order against the wishes of a parent. The 2007 Act was intended to operate in the context of the Convention rights, and it must therefore have been intended that s 31(3)(d) would be construed and given effect by the courts in a manner which complied with the Convention. Having examined the relevant case law, the Court concluded that if the provision is applied as it considered it should be, then decisions made under it are compatible with art 8. Such decisions have a legitimate aim, namely to protect the welfare of children. Moreover, they meet the requirements of necessity and proportionality.
The Court rejected the contention that s 31(3)(d) was so imprecisely expressed as to lack legal certainty. Interpreted in the light of its statutory context, it was plain that “requires” imports a test of necessity. Although s 31(3)(d) leaves much to the judgment of the sheriff, that reflects the nature of the subject-matter of the provision. It would be impossible to spell out exhaustively the particular circumstances in which an order dispensing with parental consent may be necessary. The application of the provision was foreseeable, provided the court interpreted the provision correctly and based its decision upon a reasonable assessment of the facts